Northern Pac. Ry. Co. v. Cummiskey

Citations

• 137 F. 508
• 70 C.C.A. 92
• 1905 U.S. App. LEXIS 4572

Syllabus

<p>1. Railroads—Accidents to Trains—Collision—Injuries to SwitchmanRules—Violation—Custom.</p> <p>A custom in railroad yards, permitting the use of a main track by engines and inferior trains without waiting the lapse of five minutes after the due timé of a first-class train, which was reported late,,provided there was sufficient time for the completion of the work in hand before the arrival of the belated train at the time reported, as required by a rule of the company, did not justify action on information as to the delay of such first-class train, received nearly an hour before.</p> <p>2. Same—Application.</p> <p>Where a portion of the main track of defendant's railroad between certain stations, for a maximum distance of 15 miles, was used for the transfer of trains from different parts of the yards of another railroad, and defendant had prepared a separate time-table, covering such track, on which it had printed a rule providing that when a train stops, or is delayed under circumstances in which it may be overtaken by another train, the flagman must go back immediately with danger signals a sufficient distance to insure full protection, such rule applied to the operation of a transfer train of another company, in charge of a switchman, operated over such portion of the track on the time of a passenger train, on it appearing that the transfer train was being delayed, and was not going to be able to clear the main track in time to prevent a collision with the approaching passenger.</p> <p>3. Same—Contributory Negligence.</p> <p>Rules of a railroad company required that an inferior train, failing to clear the main track in time to keep out of the way of a superior train, must be protected as provided in another rule, requiring that a flagman be sent back immediately with danger signals a sufficient distance to insure full protection. Plaintiff, a switch foreman, in charge of a transfer train of another company. • started to use a portion of defendant’s track on the